Department of Education Releases New IDEA Regs

*Parents have the right to unilaterally stop their child from receiving special education services after those services have begun, if they make a request in writing.

*Non-lawyer advocates can represent either side in a due process hearing UNLESS there's a state law to the contrary. The Education Department specifically referenced a 2000 Delaware Supreme Court case, In re Arons, that was brought by a group of lawyers against Marilyn Arons, a parent advocate. The Delaware high court decided that, though the IDEA allows parents to have expert counsel with them during a hearing, it did not override the state law that prevents non-lawyers from providing the equivalent of legal assistance.

I profiled Arons in a 2006 article about parent advocacy. She also has her own blog, which I encourage readers to check out; here's her post about this particular regulation.

*School districts now have a year from the time they discover a problem to fix any IDEA noncompliance issues. There was no specific timeline in the regulations before.

My article about these changes will be in Education Week Dec. 10. I'll update this post with the link when the story is available online.

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12 Comments

I am not opposed to parent rights, in fact over the years I have wondered why parents couldn't just opt their child out of special ed. However, after working in special education for ten years I can see some potentially negative consequences to this. Say, for example, the parent doesn't like the 7th grade special ed teacher and decides to remove their child from special education. Then the following year, they've heard good things about 8th grade special ed teacher and want their child back in. Then in 9th grade they just want to see how Freshman year goes without support and after the child flunks out the first semester they want back in. These are the kinds of things that worry me. The poor child stuck in a seesaw of inconsistent support. I have worked with families that make decisions on emotion like this and I have always assumed it is for this reason the law prevented parents from pulling children out without testing to see where the child was performing.

Aside from the child welfare issues that concern me, I have some practical teacher questions. For example, will we need to retest each time the parent decides they want back in or will the child need to go through RTI and for how long? Is there a limit to the back and forth of placements? Also, as I am knee deep in paperwork currently, this has the potential to be a paperwork nightmare. Paperwork is the bane of the special educator and is one of the top reasons good teachers leave the profession. We have heard every time IDEA get reauthorized they are aware of the ocean of paperwork that encroaches on our teaching time. Yet, decisions like the one noted here have huge paperwork consequences. I will be watching this development closely over the next couple years as parents and teachers work through just what this might mean.

Many decisions in special education are made based on emotion. Consider the emotional reaction to any kid with the label of ED--particularly if they are male, African American and taller than the teacher. This kind of emotion leads to the isolation of many kids who should be receiving education and supports with their typical peers. I have fought my way through the system for over a decade, as a parent, and I have yet to see much in the way of "services" available in "special ed" (if by this you mean the separate special ed classroom--as your examples seem to indicate). I pressed the district on this issue many times--their response was that the room WAS the service. It was a smaller class staffed by someone with certification in special education (sometimes). For a very few years (in a special school) this was augmented by actual services aimed at recognizing and dealing with emotions--by trained social workers.

Mostly "special education" (meaning what happens in that special classroom) has been a place that offered some protection from the emotional and exclusionary responses of regular teachers. They were "broadly graded" and frequently "cross categorical" so that any benefit from the smaller classroom size was erased by the diversity of needs. I have learned that "one-on-one" instruction means three students, all engaged in different content, in a closet with a "tutor" whose credentials could range from aide to special education certification--never content.

Many of the teachers have been, not only very nice people, but deeply committed to their students. This doesn't make them equal to the task at hand--which ought to be ensuring that kids with disabilities have reasonable access to the same content that is available to other kids. The more time that my son spent in "special ed" the further removed he was from his peers: intellectually, emotionally and physically. Among the damages are the things that this communicated to teachers, administrators, other students and parents (and him)about who he is, his right to a place in society, and the contributions that he can make. I do not know if he will ever recover.

It doesn't help that parents are frequently viewed as mere emotional masses of manipulative denial, and that the planning that is supposed to inject some rationality into this system is dismissed as overwhelming and meaningless paperwork. I think it would be more helpful to ask what parents have to gain in removing their child from "special ed." Why would a parent want to turn down assistance of any kind? Could it be that the "assistance" is next to non-existent and the price to gain it (exclusion and labelling) too high? You very clearly defined the difference between special and regular education as the difference between two classrooms and two teachers. This is not the case when there is a meaningful continuum of placements available. Placement in a "regular" classroom ought not require removal from special education (although this is the de facto case--we have always had the choice to abandon an illusion of services or accommodations and receive education with typical peers OR accept a watered down version of education in isolation with the other "special" kids).

Certainly, you can make it a paperwork nightmare. One, you can make it the only real way for a parent to impact the placement of their child with special needs. Two, you can treat RtI as a meaningless bunch of steps with no value add that keep kids from getting "real" services (whatever they may be). Three, you can continue to write IEPs that do not flow from one year to the next or have any relationship to real classroom goals or any notion of services needed to accomplish them. In short, you can refuse to see any value in moving from what you are currently doing and just go through the motions with the paperwork. Or, you can put that effort into building bridges with the folks in regular education and with the parents of students with disabilities.

The commentary accompanying the regulations gets into the concern that you note about parents moving their children into and out of special education services. As dry as these regulations can be, I find that the department's responses to the public comments can be fascinating. Or maybe I'm easily fascinated!

Anyway, here's a synopsis:

"... A few commenters requested that
there be a limit to how frequently a parent can revoke consent and then
subsequently request reinstatement in special education for their
child.
Discussion: ...We do not agree with the commenter that the Department should limit how frequently a parent may revoke consent and then subsequently request reinstatement in special education services because retaining flexibility to address the unique and individualized circumstances
surrounding each child's education is important.

"A public agency will not be considered in violation of the obligation to make FAPE available to the child for failure to provide the child with further special education services following a parent's revocation of consent."

Also, to your point about re-evaluation if a parent wants services reinstated, that request should be treated as a request for an initial evaluation, the department says. However, that "new" initial evaluation can include assessments and observations that have already been collected on that student.

Margo,
I imagine our difference of perspective comes less from parent and teacher perspective (as I too have a son with special needs) and more for how inconsistent services are across the country. With that said, I am sorry if my post was confusing. I did not mean to paint Special Ed as a separate classroom and a separate teacher. I do not view special education as a place and separate from the classroom. In fact, of the 13 students I case manage I only pull three learning disabled students out of their regular classroom for reading instruction (and it is less an issue of content and more an issue of space needs). My 3 students with EBD labels and 3 students with cognitive disabilities are included in the classroom with support, modifications, accommodations and modeling from me. So, please trust me, I don’t see Special Ed as a segregated place and have been huge advocate for all kids to be included with their peers.

Secondly, I couldn’t agree with you more on the issues that cross categorical caseloads present to service delivery. While I do not have a special classroom, I still find the diversity of needs on a cross categorical caseload pulls services too far. I also agree with you that service delivery from an aide without certification is not the same as a certified teacher and it can be nothing more than tutoring. I think we are closer in our opinion than it appears here. It is these issues I wish reform were being focused on.

It sounds like your experience has not been very good, despite good teachers and good intentions. This is perhaps where perspectives of parent are and teacher does affect our opinions. If there are problems with teachers or service delivery, pulling your child from special education may help your child (I say may only because removing an EBD student from services opens him up to suspensions and expulsions he doesn’t deserve, but that is aside from the point), but it does not fix anything for the other children without good parent advocates. If there is a problem with service delivery I would hope parent would address that, with the school, instead of pulling out of special education. From you post, it seems that you feel defeated in trying to just that. I am sorry that has been your experience. I do not view parents as “emotional masses of manipulative denial”. I have always seen them as fellow advocates for the child. Clearly our experiences are different and for that I am sorry.

I do find it sad that parents may feel the only way to make an impact on teachers is to add to the paperwork pieces, as this does nothing but take services further away from the student. Every minute I spend making sure I checked the right box for legal purposes is stolen from teaching time. I am not sure I got your point about RTI. RTI has been a challenge for all involved as it is taking shape with limited professional development for all parties. I do hope RTI helps general ed teachers and special education teachers to further see all children as their joint responsibility. Margo, I am not opposed to change, and neither are many of us in the trenches. My only concern was that this might not be the best way to implement it.

I think that the country has got caught up in catering to kids with special needs and the regular students rights are being violated to the fullest. I think full inclusion was the biggest mistake we have made and we are going to suffer as a nation.
We are already behind the the other major countries in Science and Math and we will continue to lag behind as long as teachers are forced to have all these different disabilities in regular classrooms.
teachers have kids in their classes not even on the track for a diploma taking time away from students who are attending college.
If mainstreaming and inclusion are going to be the in effect fine. But to dump every special education child in the regular classroom is ridiculous. I have seen incidents where these down syndrome children have disrupted the learning environmen t with hitting children, loud outburst, you name it. Is this fair to the other students.
Paraprofessionals have been taken from working with 10 students as to running around with an austic kid who will never learn to do anything more then survive. I think this is crazy when this student could be in a life skills class learning to survive in the real world.
Do the average children have a right to learn in a conducive environment? It is ridiculous to have students crawling on a middle school floor and staff chasing a special needs student when they are supposed to be teaching the students.
Many students have really been upset when their teacher must attend IEP's and can not meet with groups.
special education Parents who are permitted to pull students in and out of special education will just overwhelm the school staff with paper wotk when they receive the truth from a teacher who does not agree with them.
Until the U.S. gets back to the basics of making students learn to read aND WRITE, LEARN BASIC MATH SKILLS WE WILL NEVER MEASURE UP TO ASIA AND OTHER COMPETENT PARTS OF THE WORLD.
wE ARE HOPING FOR A POSITIVE CHANGE WITH OBAMA BECAUSE WE ARE LOOSING NEW TEACHERS EVERY YEAR AND WILL CONTINUE UNTIL WE SEE A CHANGE. mONEY IS NOT A POSITIVE MOTIVATOR TO KEEP TEACHERS.

I consider myself to be a passionate educator of and advocate for students with learning and/or social-emotional-behavioral exceptionalities and their families; however, I find that in the real world of the classroom, teaching in an inclusion model is highly challenging. I am very aware of the research that consistently supports including students who are atypically developing as best practice, but to date I have not found much empirical evidence for the positive academic effects of this model on their typically developing peers. I have seen some evidence that this model has + effect sizes on the social-emotional progress of typically developing students (increasing compassion...).
Most of the research I have read on the + effects of differentiation has been with students who are identified as G/T, and not students identified with learning/behavioral disorders (although I realize students may be identified under several exceptionality categories). Is it really reasonable to think we can individualize instruction and social-emotional interventions in classrooms of 25 + students? I think we need to be mindful of what we can really do vs. what we might do in a perfect world. It is easy to write an intervention on a document, and far more complex to implement it with fidelity in the highly dynamic real world of the classroom.

LH should be aware that in Japan a mere 1% of students are identified for "special education." These are students whose disabilities make them candidates for the kinds of life-skills training that she is suggesting is appropriate for students with autism and down syndrom. All other students are a part of the general population. They stress pedagogical, social and moral benefits to operating out of values that are not segregative for the most part.

Finland--another of the countries that is smoking us with regard to student achievement has a highly organized system that I would identify as being a tiered approach--similar to RtI. Only 7% of their students are identified for "special education" per se. A larger number (up to 20%) receive "part-time" special education services, or intervention aimed at getting kids back on track with their peers. This is very tightly aligned with, and under the direction of the classroom teacher (carried out by classroom aids or special education teachers). Those students who are in the "full time" special education group receive services from more highly trained teachers in separate classrooms or schools.

Hong Kong, coming out of an environment in which universal education was not the rule and entry to and progress in schools very competitive has been re-thinking its response to students with varying learning barriers. While the expansion of universal education brought along with it a proliferation of separate facilities for a laundry list of poor performers, the current official government response is to set expectations for schools to move in the direction of including all students.

While LH is upset about "full inclusion," s/he should also be aware that full inclusion is far from the case in the US. While there may be buildings, or perhaps districts, that have moved in this direction--"full inclusion" is far from the picture that one gets from the state or national statistics about where kids with disabilities are receiving education.

One of the saddest realities for me as the parent of a child with disabilities has been that despite the fact that my child has rights on paper, enforcing those rights in reality is difficult and sometimes impossible. Certainly one barrier is the number of people (whether they are teachers, parents or students) who believe that they have a right to be free from contact with people who are different. Personally, I have not experienced people with Down syndrom who are violent (and in fact, the opposite tends to be the case), nor people with autism who cannot do more than survive, I have experienced non-disabled adults and children who believe that it's OK to be rude and exclusive to classes of people who are different (all kinds of difference: language, ethnicity, ability, gender, sexuality). I know many such excluded people who have been treated to outbursts, to violence, to rudeness, to misunderstanding, to harassment and avoidance.

The reality is--separate cannot ever be equal--particularly when the basis for that separation is to maintain a distance from people who are less desireable, or to hold benefits for an advantaged group.

Kim,
I agree with you that full inclusion can be very challenging. I also agree the GT differentiation has yet to prove itself effective. For those children who are twice exceptional (one example is Dyslexic and GT ) differentiation can’t meet the needs alone. I think the problems you are talking about come down to what support looks like for the teacher and the student(s). I have heard of districts where inclusion means placing the kids in the classroom with limited or ineffective support. It is really dumping for lack of a better word onto the general education teacher.

This happens even in my district, which is very progressive. There are times when we are not able to use flexible grouping like we should (again because services are so limited). Let me give you an example Imagine your 25 students during a literacy block where the special education and reading teachers came in and collaboratively taught your 7 lowest readers, and GT Teacher came in and taught your 3 academically advanced. All right there in your classroom. That would leave you with 15 kids in the average range. Now imagine meeting once a week to plan and chat about problems or kids. Imagine changing up groups every six weeks, so each teacher taught each group of kids. All the teachers helped with parent teacher conferences, IEPs and report cards, because we had each taught all the kids in your class.

We did this in our 2nd grade and it was fabulous. However and here is the kicker, because it was so successful no NEW students were referred for reading service or special education and all of our “At Risk kids” were reading at grade level. The next year, the contract of a special education teacher was reduced because there were not enough kids to justify a full time position and GT was cut due to another budget cut. The second grade teacher was on her own, again. Because IDEA and Title monies are given based on how many kids you have IN the program and RTI monies are not enough, we are still working short sighted. Inclusion can work, but only if the Feds pony up what is owed to the schools and the general education classes (thus the struggling and GT learners) are given the support they deserve.